And Now A Word From The Panel: It's Not Just MDLs

Welcome to the latest installment of And Now a Word from the Panel, a column which "rides the circuit" with the Judicial Panel on Multidistrict Litigation as it meets on a bimonthly basis at venues around the country.

As the panel heads to this author's home town of the Big Apple (New York, New York) for its Nov. 29 hearing session, the panel closes out 2018 with its smallest oral argument docket of the year. This month, the panel considers only five MDL petitions. Assuming that all remain on this Thursday's docket, it will bring to 61 the total number of new MDL motions heard by the panel in 2018.

As this column culminates its sixth year, we explore an overlooked aspect of panel practice – and it has nothing to do with the classic MDL. But before we share this little-known statutory power of the panel, let's look at the results from the panel's September hearing session, held in San Francisco, as well as the overall MDL landscape. In addition, for the first time in four years, we have the opportunity to welcome new panel members (more on that later)!

Following the September hearing session, the panel ruled on 10 motions seeking to create new MDL proceedings. The panel granted four motions and denied six motions. With 56 rulings under its belt this year and only five motions to go, the panel's 2018 "batting average" now stands at .464 (26 out of 56). Three of the four new MDL proceedings involve product liability or antitrust claims.

The overall number of pending MDL proceedings has declined slightly to 209,1 as compared to 211 just two months ago, with nearly a third of the current MDL proceedings comprised of product liability litigations.2 A total of 33 of the 209 MDL proceedings have more than 500 individual pending actions, almost all of which involve product liability claims.3 The panel continues to close out older MDL dockets, terminating a total of 41 existing MDLs this year through mid-November.4

The Panel: Not Just MDLs!

Although the panel is most known for its work regarding MDLs, the panel plays a vital statutory role with respect to the review of agency orders at the appellate level. In particular, where a challenge to agency action is made in multiple courts of appeal, the panel is entrusted with consolidating those proceedings in a single court of appeals.

But there is a key difference between the panel's roles in selecting venues for multidistrict litigation and for "multicircuit petitions," or MCPs. Whereas the panel has a discretionary role in selecting the transferee court for an MDL (as MDL practitioners know well),5 the panel has no discretion in selecting the venue for an MCP.

Rather, the statutory mandate to the panel in these circumstances is that it "shall" select a court of appeals by "random selection." Specifically, under 28 U.S.C. § 2112(a)(3):

If an agency, board, commission, or officer receives two or more petitions for review of an order ... the agency, board, commission, or officer shall, promptly after the expiration of the ten-day period specified in that sentence, so notify the judicial panel on multidistrict litigation. ... The judicial panel on multidistrict litigation shall, by means of random selection, designate one court of appeals, from among the courts of appeals in which petitions for review have been filed ... and shall issue an order consolidating the petitions for review in that court of appeals.

In an October decision, the panel highlighted its lack of discretion in the MCP process.6 In that matter, the panel considered an opposition to a notice of multicircuit petitions filed with the panel by the National Labor Relations Board pursuant to Section 2112. The opposition asserted that the agency order at issue before the Ninth Circuit and D.C. Circuit was "dependent on the outcome of [other] petitions pending in the Ninth Circuit" and that the panel should "not invoke the random selection process."7

The panel rejected that argument, holding that "when the statutory criteria for submitting a notice of multicircuit petitions for review are met, the Panel has no discretion with respect to conducting the random selection set forth in Section 2112(a)(3); nor does it have the authority to issue orders to the circuit courts in which the petitions for review are pending.8

The panel's rules provide clear guidance as to how the "random selection" process is conducted. Under those rules, once a notice of MCP is filed,

the Clerk of the Panel shall randomly select a circuit court of appeals from a drum containing an entry for each circuit wherein a constituent petition for review is pending. Multiple petitions for review pending in a single circuit shall be allotted only a single entry in the drum. A designated deputy other than the random selector shall witness the random selection.9

Welcome to the Panel!

Before saying goodbye to another year at the panel, we have the opportunity to welcome two new panel members, Chief Judge Karen K. Caldwell of the Eastern District of Kentucky and Judge Nathaniel M. Gorton of the District of Massachusetts. These two new members of the seven-member panel replace Judge Marjorie O. Rendell (Third Circuit Court of Appeals) and Judge Charles R. Breyer (Northern District of California), who have served on the panel for the past seven years.

As readers of this column may recall, the MDL statute (28 U.S.C. § 1407) vests the Chief Justice of the Supreme Court with the sole authority to appoint panel members.10 Under the statute, Chief Justice John Roberts selects the seven panel members from among district and circuit court judges, although no two panel members may "be from the same circuit." The last appointment to the panel was in October 2014.11

What will the panel's trip to the Big Apple bring? Will the panel's "batting average" for the year inch closer to .500? Will the new year bring an uptick in the number of new MDL motions, or is this hearing session the harbinger of a downward trend of such motions? What issues will the panel with its new members consider? Stay tuned for our January year in review edition of And Now a Word From the Panel, as this column enters its seventh year and the panel heads to its frequent winter destination – Miami, Florida – for its first hearing session of the new year, on Jan. 31, 2019!

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